Opinion
D070013
04-19-2017
THE PEOPLE, Plaintiff and Respondent, v. URIEL RAMIREZ, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN336344) APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed. Patricia J. Ulibarri, under appointment by the Court of Appeal for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Uriel Ramirez guilty of kidnapping during a carjacking (Pen. Code, § 209.5) and reckless evasion of a peace officer (Veh. Code, § 2800.2, subd. (a)), and found firearm-use and gang enhancement allegations to be true. The trial court sentenced him to 30 years to life, plus 22 years. On appeal, defendant contends the trial court erred by failing to adequately instruct the jury regarding consent-defense concepts. He also contends the true finding on the gang enhancement allegation is not supported by sufficient evidence. We reject both contentions and affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case
At about 10:00 a.m. on September 1, 2014, 17-year-old J.A. was sitting in his 2003 Honda Accord in the parking lot of the Buena Creek Transit Center in Vista waiting for his girlfriend. J.A. saw a male, later identified as defendant, milling around the parking lot. Defendant was wearing black or blue shorts, a blue shirt, long knee socks, and football gloves. He drew J.A.'s attention because this is the type of clothing "somebody with gang affiliation wears." J.A. knew this because, although he was not a gang member, he grew up around people he "thought were involved in gangs."
As J.A. opened his car door to stretch, defendant approached and asked for a ride. J.A. responded, "No, I can't." Defendant replied, "It's fine," and began walking away. J.A. returned to what he was doing.
About five seconds later, defendant returned and angrily told J.A. to give him the car. Defendant appeared to be high on drugs. He had one hand under his long t-shirt, near his waistband; J.A. could see "an outline of what looked like a rectangle." Defendant told J.A. that if he did not give him the car, he would kill him. J.A., who had worked hard to save up money to buy the car, said no. Defendant pulled a black handgun from under his shirt, pointed it at J.A.'s head, and said, " 'Do you know where you are? This is my hood.' " J.A. construed this as a threat that he was "in the wrong part of town." Defendant again angrily demanded J.A.'s car. Not wanting to lose his car, and fearful that defendant would "shoot [him] right there" in the parking lot even if he surrendered it, J.A. instead offered to give defendant a ride. Defendant declined. J.A. said, "Come on. Just let me give you a ride." J.A. was scared and shaking. Defendant agreed and walked around the front of the car, concealing the handgun under his shirt. J.A. thought about trying to escape, but "didn't want to get shot at." Defendant got in the front passenger seat, placed the gun on his lap, and pointed it at J.A.'s chest. J.A. asked, "Where to?" Defendant responded, "Just drive." J.A. drove the car out of the parking lot and headed north. J.A.'s girlfriend arrived in time to see them drive off, which struck her as unusual.
As they drove, defendant told J.A., "I'm from San Marcos." J.A. understood this to mean that defendant "represents" San Marcos or claims it as his "hood," not merely that "Oh, that's where he lived." J.A. observed that defendant had "San Marcos" tattooed on his upper lip, and the letter "E" tattooed on his neck. Defendant said his name was "Shadow" (or something similar), that he was "on the run," and that "they" were searching his apartment. As J.A. drove, defendant played with the gun, ejecting the magazine. J.A. could see the bullets. Defendant warned, "I still have one in the chamber. I could kill you now." J.A. did not try to get anyone's attention because he was afraid of being shot.
After about eight minutes of driving on a main street (Santa Fe Road), Defendant told J.A. to turn onto a residential side street (Nevada Street). J.A. refused, afraid defendant might be "tak[ing] [him] somewhere worse," in "that he could have other, like, friends there." J.A. offered to drop off defendant, and, with the gun still pointed at him, pulled to the curb and stopped. Defendant responded, "I'm taking the car then." J.A. acquiesced. As J.A. exited the car, defendant leaned over, pushed J.A. out, and drove off heading north. J.A., still afraid that defendant might shoot him, ran south. About two minutes later, J.A. saw defendant drive by fast, roll down the window and point his gun at J.A.
A college student who saw the car driving erratically and saw J.A. running followed J.A. to offer assistance. The student caught up with J.A. and gave him a ride back to the transit center. J.A., shaking and trembling, told the student what had happened. J.A. called 911, and a recording of his call was played for the jury. Later that day, J.A. selected defendant's photo in a six-pack photo array.
In the meantime, defendant led law enforcement on a high-speed chase that involved a helicopter and a canine unit. After crashing J.A.'s car, defendant fled on foot and sent a text message to Jorge Adame asking to pick him up. Adame picked up defendant and dropped him off at a girl's house.
Defendant conceded the reckless evasion count at trial and does not challenge it on appeal. We therefore discuss it only as it relates to his appellate claims on other counts.
Adame later pleaded guilty to being an accessory after the fact.
The next day, law enforcement had defendant under surveillance at a restaurant in Oceanside. An FBI agent assigned to the North County Regional Gang Task Force walked past defendant to confirm his identity. As he did, the agent heard defendant "telling [a] story to [another] Hispanic male," explaining he was "running," "[t]hey were everywhere," and the "bird was up." As he talked, defendant made a gesture with his hands as if he were holding a gun. Defendant was arrested without incident. Law enforcement did not recover a gun from defendant or J.A.'s car.
Investigators collected forensic evidence. Security camera footage showed defendant was in the transit center parking lot the morning of September 1. Text messages from around that day were extracted from defendant's cell phone. In one message, defendant referred to himself as "Grims" and requested a ride. Outgoing texts from later that evening read: "Just got away 4-R-M [from] the cops," "I almost got busted today," and "today I thought I would neva get to see you again. Honestly I was feeling hella down when the ghetto bird was on me."
Detective Jeff Creighton of the San Diego Sheriff's Department testified at trial as the prosecution's gang expert. He testified defendant was a member of Varrio San Marcos (VSM), one of the two main Hispanic street gangs in San Marcos. When asked a hypothetical question based on facts mirroring the evidence elicited in the prosecution's case, Detective Creighton opined that the hypothetical actor's conduct would benefit and promote the VSM gang. We discuss Detective Creighton's testimony in more detail in part III, post.
The Defense Case
Defendant was the sole defense witness. He had been "interested and attracted to the gang lifestyle" since elementary school, and admitting to joining VSM when he was 18 or 19. He was 22 at the time of the offense and had been released from custody just two weeks earlier.
Defendant testified he had three prior felony convictions.
On September 1, defendant was at the transit center returning to his aunt's house after having spent the night with an ex-girlfriend. He had been smoking marijuana when he saw J.A. pull into the parking lot. Defendant thought he knew J.A., so he approached. When defendant got close enough to J.A.'s open car door to realize he did not know J.A., defendant said, "My bad. I thought you were one of my friends." J.A., who did not know defendant, then said, "Dude, you're fucking high," and asked, "Where's it at?", which defendant characterized as "a slang term that, like, he wanted some bud." Defendant had marijuana in his possession, but did not want to come across to J.A. as the type of person who sells marijuana. Therefore, he told J.A. he did not have any, but had a friend who lived nearby who would sell him some. Defendant planned to ultimately sell J.A. the marijuana himself. J.A. then offered defendant a ride to the friend's house to conduct the transaction. Defendant got in J.A.'s car "[v]oluntarily," and they drove north. Defendant insisted he was not carrying a gun, and didn't even own one around that time.
As they drove, defendant "pretty much introduced [him]self, like [he] always [does] to people." He said he was from San Marcos, which was "obvious[]" because of the "label on [his] face." And although his real gang moniker is "Grims," he told J.A. he goes by "Stranger." J.A. told defendant he wanted to purchase "an eighth" of marijuana for $40. Defendant directed J.A. to pull over near Nevada Street, and asked for the money. When J.A. stopped the car and handed defendant the money, defendant "just grabbed it and . . . ran out." J.A. exclaimed, "What the fuck?", and chased defendant on foot.
Defendant—being "a very athletic person"—outran J.A., circled back to J.A.'s idling car, and drove it away. Defendant admitted he led law enforcement on a high-speed chase in the manner described by the prosecution witness. He also admitted he sent a text message while fleeing, asking to be picked up. He was picked up by two VSM members, and told them what had happened. He was arrested the following day.
Verdicts and Sentence
A jury found defendant guilty of kidnapping during a carjacking (§ 209.5) and reckless evasion of a peace officer (Veh. Code, § 2800.2). The jury also found true the firearm-use and gang enhancement allegations attendant to the kidnapping during a carjacking count. (§§ 12022.53, subd. (b), 186.22, subd. (b)(1).) Defendant admitted to having two prison priors (§§ 667.5, subd. (b), 668) and a felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). The trial court sentenced defendant to 30 years to life, plus 22 years.
DISCUSSION
I. Instructional Error
The crime of kidnapping during a carjacking includes an asportation element. (§ 209.5, subds. (a), (b); People v. Medina (2007) 41 Cal.4th 685, 693.) The victim's actual consent to movement is a defense to this element, as is the perpetrator's reasonable but mistaken belief in the victim's consent. (People v. Isitt (1976) 55 Cal.App.3d 23, 28 (Isitt).) Defendant relied on an actual consent theory at trial (that is, J.A. voluntarily drove him somewhere to conduct a drug transaction), and the jury was instructed that the People bear the burden of proving the victim did not consent. On appeal, defendant contends the trial court should have instructed the jury more comprehensively on the actual consent defense. We find no prejudicial error in this regard.
Defendant contends the trial court also erred by not sua sponte instructing the jury regarding the reasonable but mistaken belief in consent theory—"the so-called Mayberry instruction" (People v. Dominguez (2006) 39 Cal.4th 1141, 1147 (Dominguez), citing People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry)—based on J.A.'s purportedly "equivocal" conduct of offering defendant a ride in lieu of surrendering his car. (Dominguez, at p. 1148.) "Applying settled principles of law, we find no error because defendant neither relied on a Mayberry defense nor presented substantial evidence to support one. His defense was solely one of consent in fact." (Id. at p. 1147.)
Although Mayberry involved rape (Mayberry, supra, 15 Cal.3d at p. 147), its holding with respect to reasonable but mistaken belief in consent has been extended to kidnapping. (See Isitt, supra, 55 Cal.App.3d at p. 28.)
Because defendant's challenge implicates a potential sua sponte duty to instruct, we decline the Attorney General's invitation to declare the challenge forfeited. (See, e.g., People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20.)
A. Background
Defendant's trial theory was that J.A. voluntarily drove him somewhere to conduct a drug transaction. During closing argument, defense counsel emphasized this theory by challenging J.A.'s version of events as unreasonable:
"[J.A.] says, when confronted with a gun [and] 'Give me your car or I'll kill you[,]' 'No. I'd rather give you a ride. Let's just go for a ride. I'll take you wherever you want to go.'
"Does that seem reasonable, given the circumstances of everything else about the case and about his testimony? I'd rather go with a total stranger who looks like a gangster with tattoos all over the place and a gun. I'd rather leave this public area, a transit station, where there are people at 10:00 in the morning. I'd rather go off with him somewhere with this real gun, with this real gang member, and take him wherever he wants to go. I'd rather do that than just relinquish my keys because I worked hard for this car. I didn't want to give up this car.
"Does that really make sense?
[¶] . . . [¶]
"They had a casual conversation in the car because my client had the tattoo. [J.A.] and [defendant] had a discussion about [defendant]
being in a gang, which is entirely different than bragging or intimidating someone about being in a gang.
"He told the detective he thought [defendant] was high. He was. And [J.A.] was interested in securing some marijuana for himself. So that's why they left.
[¶] . . . [¶]
"But when he reported this crime—perhaps it was human nature, perhaps it was embarrassment, self-preservation, wanting to protect his reputation, not wanting his girlfriend or his parents to know that this started because he wanted to get some marijuana.
[¶] . . . [¶]
"There was no gun. The judge instructed you on circumstantial evidence. And I submit to you that the absence of a gun—not found in the car later, not found on my client when he's arrested the next day—is circumstantial evidence that there was no gun.
"That helps explain why [J.A.] would leave and go away from this transit station against his will. Of course. That's why he had to leave. That's why he had to take [defendant] away from the transit station, is because he was being threatened with a gun."
The trial court instructed the jury with CALCRIM No. 1204, the pattern jury instruction on kidnapping during a carjacking, which reads:
"The defendant is charged in Count Two with kidnapping during a carjacking in violation of Penal Code section 209.5.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant committed a carjacking;
"2. During the carjacking, the defendant took, held, or detained another person by using force or by instilling reasonable fear;
"3. The defendant moved the other person or made that person move a substantial distance from the vicinity of the carjacking;
"4. The defendant moved or caused the other person to move with the intent to facilitate the carjacking;
"5. The person moved was not one of the carjackers; AND
"6. The other person did not consent to the movement.
"To decide whether the defendant committed carjacking, please refer to the separate instructions that I have given you on that crime.
"As used here, substantial distance means more than a slight or trivial distance. The movement must have been more than merely brief and incidental to the commission of the carjacking. The movement must also have substantially increased the risk of physical or psychological harm to the person beyond that necessarily present in the carjacking. In deciding whether the movement was sufficient, consider all the circumstances relating to the movement.
"Fear, as used in this instruction, means fear of injury to the person or injury to the person's family or property." (First italics added.)
Neither party requested, and the court did not give, the following optional, bracketed language in CALCRIM No. 1204 regarding the defenses of reasonable but mistaken belief in consent or actual consent:
"[AND
"7. The defendant did not actually and reasonably believe that the other person consented to the movement.]"
[¶] . . . [¶]
"<Defense: Good Faith Belief in Consent>
"[The defendant is not guilty of kidnapping if (he/she) reasonably and actually believed that the other person consented to the movement. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person consented to the movement. If the
People have not met this burden, you must find the defendant not guilty of this crime.]"
"<Defense: Consent Given>
"[The defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if (he/she) (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient maturity and understanding to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the People have not met this burden, you must find the defendant not guilty of this crime.]
"[Consent may be withdrawn. If, at first, a person agreed to go with the defendant, that consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by the defendant. The defendant is guilty of kidnapping if after the other person withdrew consent, the defendant committed the crime as I have defined it.]"
Defendant now contends the trial court should have sua sponte instructed the jury with this additional language.
B. Relevant Legal Principles
"In the absence of a request for a particular instruction, a trial court's obligation to instruct on a particular defense arises ' "only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." ' " (Dominguez, supra, 39 Cal.4th at p. 1148; see People v. Andrade (2015) 238 Cal.App.4th 1274, 1300 (Andrade).) Substantial evidence of a defense is evidence that, if believed, would be sufficient for a reasonable jury to find reasonable doubt of the defendant's guilt. (People v. Salas (2006) 37 Cal.4th 967, 982.) "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." (People v. Wilson (1967) 66 Cal.2d 749, 763.) However, a "jury instruction need not be given whenever any evidence is presented, no matter how weak. [Citation.] Rather, the accused must present 'evidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable [people] could have concluded that the particular facts underlying the instruction did exist.' " (People v. Strozier (1993) 20 Cal.App.4th 55, 63.) Put differently, "a trial court has no obligation to instruct sua sponte on a defense supported by 'minimal and insubstantial' evidence." (People v. Barnett (1998) 17 Cal.4th 1044, 1152.)
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276 (Dieguez).) We presume that the jury is "able to understand and correlate instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852 (Sanchez).)
C. Analysis
1. Actual Consent
Defendant relied on an actual consent defense and, thus, was entitled to have the jury instructed on it. (Dominguez, supra, 39 Cal.4th at p. 1148; Andrade, supra, 238 Cal.App.4th at p. 1300.) We conclude the jury was, in fact, adequately instructed in this regard. First, regarding the kidnapping during a carjacking count, the court instructed the jury via CALCRIM No. 1204 that the People were required to prove J.A. "did not consent to the movement." This expressly informed the jury of the consent concept and indicated the People bore the burden of disproving consent. Second, in connection with the lesser-included carjacking count, the court instructed the jury on the definition of "consent" with CALCRIM No. 1650: "An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act." The court also instructed the jury to "[p]ay careful attention to all of these instructions and consider them together." (CALCRIM No. 200, italics added; see Dieguez, supra, 89 Cal.App.4th at p. 276; Sanchez, supra, 26 Cal.4th at p. 852.) Considering the instructions as a whole, we conclude the jury was sufficiently instructed on the concept of actual consent. The fact the court did not also instruct the jury with CALCRIM No. 1204's bracketed paragraph—which the bench notes characterize as "[a]n optional paragraph" (italics added)—is thus of no moment. (CALCRIM No. 1204; Judicial Counsel of Cal., Crim. Jury Instns. (2016 ed.) Bench Notes to CALCRIM No. 1204, p. 956.)
Even if the trial court erred by not instructing the jury with CALCRIM No. 1204's optional language regarding actual consent, the error caused defendant no prejudice because the jury necessarily resolved the underlying factual predicate (whether J.A. accompanied defendant voluntarily or only because defendant threatened him with a gun) against defendant by making a true finding that he used a firearm during the commission of the carjacking. (See People v. Stewart (1976) 16 Cal.3d 133, 141 ["a failure to instruct where there is a duty to do so can be cured if it is shown that 'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions' "].)
2. Reasonable But Mistaken Belief in Consent
Defendant did not rely at trial on a Mayberry defense of reasonable but mistaken belief in consent. Thus, he was only entitled to have the jury instructed on the theory if it was supported by substantial evidence and was consistent with his defense theory. (Dominguez, supra, 39 Cal.4th at p. 1148; Andrade, supra, 238 Cal.App.4th at p. 1300.) Defendant has not cleared these hurdles.
"The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented . . . . In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent." (People v. Williams (1992) 4 Cal.4th 354, 360-361 (Williams), fn. omitted.) Evidence of the defendant's state of mind may be circumstantial. (People v. Thomas (2011) 52 Cal.4th 336, 355.)
"In addition, the defendant must satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented . . . , that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction." (Williams, supra, 4 Cal.4th at p. 361.) "[B]ecause the Mayberry instruction is premised on mistake of fact, the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not." (Id. at p. 362.)
In evaluating the objective component, the victim's conduct that the defendant claims "was equivocal must be viewed in the context of the circumstances surrounding the conduct he described." (People v. Hernandez (2009) 180 Cal.App.4th 337, 345.) Thus, for example, in Hernandez, our court found it "unreasonable as a matter of law for [the defendant] to believe the victim consented to sexual intercourse" where, although defendant knew the victim from church, he broke into her home in the early hours of the morning carrying a two-foot long metal bar, told the victim he had killed a police officer, and "gave her ten minutes to give in to his demands for sex or 'something bad was going to happen.' " (Id. at pp. 344-345.)
Assuming without deciding that substantial evidence supports the subjective component of the Mayberry defense, we conclude the trial court was not required to sua sponte instruct the jury on this defense because substantial evidence does not support defendant's claim—asserted for the first time on appeal—that he reasonably relied on equivocal conduct by J.A. That is, "viewed in the context of the circumstances" of J.A.'s offer to give defendant a ride (Hernandez, supra, 180 Cal.App.4th at p. 345), it would have been unreasonable as a matter of law for defendant to believe J.A. consented to accompany him. J.A. was a minor and was not a gang member. Defendant was a stranger who appeared to J.A. to be a gang member. Indeed, he was one. When defendant asked J.A. for a ride before pulling a gun on him, J.A. declined the request. It was only when defendant then threatened J.A. with the gun and demanded his car—facts the jury specifically found to be true—that J.A. then offered defendant a ride. In light of defendant pulling a gun on J.A. and threatening to kill him if he did not surrender his car—circumstances that put defendant in "fear of injury to the person or injury to the person's . . . property" (CALCRIM No. 1204)—it would have been unreasonable as a matter of law for defendant to believe J.A. consented to give him a ride.
We are mindful of the Supreme Court's "guidance" in Williams about exercising caution when considering a victim's post-threat conduct in evaluating purportedly equivocal conduct. (Williams, supra, 4 Cal.4th at p. 364.) However, we find the guidance inapplicable here because it applies only when there is substantial evidence of objective reasonableness. That is lacking here. Moreover, we need not concern ourselves with what a hypothetical jury might believe or disbelieve. With the benefit of hindsight, we know for a fact that the jury believed J.A.'s claim that defendant personally used a firearm in the commission of the offense. In that context, defendant could not reasonably have believed J.A. consented to give him a ride.
The Williams court stated:
"No doubt it would offend modern sensibilities to allow a defendant to assert a claim of reasonable and good faith but mistaken belief in consent based on the victim's behavior after the defendant had exercised or threatened 'force, violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another.' [Citations.] However, a trier of fact is permitted to credit some portions of a witness's testimony, and not credit others. Since a trial judge cannot predict which evidence the jury will find credible, he or she must give the Mayberry instruction whenever there is substantial evidence of equivocal conduct that could be reasonably and in good faith relied on to form a mistaken belief of consent, despite the alleged temporal context in which that equivocal conduct occurred. The jury should, however, be further instructed, if appropriate, that a reasonable mistake of fact may not be found if the jury finds that such equivocal conduct on the part of the victim was the product of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (Williams, supra, 4 Cal.4th at p. 364.)
In any event, the trial court was not obligated to sua sponte instruct the jury on the reasonable but mistaken belief in consent defense because it was inconsistent with defendant's theory of the case. (See Dominguez, supra, 39 Cal.4th at p. 1148 [sua sponte duty to instruct arises " ' "if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case " ' "], italics added.) Defendant vigorously challenged J.A.'s credibility and declared his version of events to be unreasonable. Defendant testified in his defense and expressly asserted an actual consent defense. In doing so, he denied owning or possessing a gun, which was the impetus of J.A.'s purportedly equivocal conduct. To now claim that defendant reasonably believed J.A. consented to accompany him based on the very conduct he expressly denied occurred is wholly inconsistent with defendant's trial testimony and his trial counsel's argument to the jury.
In sum, the jury was properly instructed on the only consent theory that was supported by substantial evidence—actual consent.
II. Ineffective Assistance of Counsel
As a fallback to his sua sponte instructional duty argument, defendant contends his counsel's failure to affirmatively request additional instruction on consent theories constituted ineffective assistance. We disagree.
To establish ineffective assistance of counsel, a defendant "must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner." (In re Neely (1993) 6 Cal.4th 901, 908-909, citing Strickland v. Washington (1984) 466 U.S. 668, 687.) If a defendant fails to show prejudice, a reviewing court may reject the claim of ineffective assistance of counsel without determining whether counsel's performance was adequate. (People v. Thompson (2016) 1 Cal.5th 1043, 1101; Strickland, at p. 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."].)
Defendant has not met his burden of showing prejudice. First, although defendant relied on an actual consent defense, we concluded in part I.C.1, ante, that the jury was adequately instructed on this defense. Thus, defendant was not prejudiced by his counsel's failure to affirmatively request additional instruction on this defense.
Second, because defendant neither relied on a reasonable but mistaken belief in consent defense nor cited substantial evidence of his objectively reasonable belief in consent, he likewise was not prejudiced by his counsel's failure to request an instruction on this defense. Thus, his ineffective assistance of counsel challenge fails.
III. Sufficiency of Evidence Supporting Gang Enhancement
Defendant contends the jury's true finding on the gang enhancement allegation is not supported by sufficient evidence. He does not dispute that VSM is a criminal street gang or that he is a VSM member. Instead, he contends insufficient evidence supports the findings that the kidnapping was gang-related and that he acted with a specific intent to promote, further, or assist VSM. We are not persuaded.
A. Background
Detective Creighton testified as the prosecution's gang expert. He was responsible for handling the criminal street gangs based in San Marcos and had regular contact with gang members and associates. He testified about gang culture, generally. He explained that respect—which gang members view as synonymous with fear—"means everything to them." Gangs rely on fear to prevent witnesses from cooperating with law enforcement; the more notorious the gang, the greater the deterrent effect. Weapons are also "[v]ery much" "a big deal" in gang culture—"[t]hey are a status symbol," with guns being "the most prized." A gang member who is "willing to use weaponry on another person [is] . . . kind of elevated in stature with the gang." Detective Creighton observed of victims of violent gang crimes that their fear of the gang typically outlasts their fear of the weapon or threat of violence used during the crime because "there's a greater likelihood of [the] gang retaliating against [the victim]."
Detective Creighton testified there are two main Hispanic street gangs in San Marcos: Varrio San Marcos, and its rival South Los. Defendant was a documented VSM member and used the moniker "Grims." VSM formed in the 1970's and has approximately 95 documented members (and another 95 associates). Detective Creighton testified about four predicate offenses committed by VSM members involving crimes such as gang graffiti (including a death threat to a sheriff's deputy), assault with force likely to cause great bodily injury, assault with a firearm, and making criminal threats. These are just "part of" VSM's primary activities; Detective Creighton said he learned "[m]ultiple times a week" about "a new crime that . . . was committed by Varrio San Marcos or is at least a signature offense of the Varrio San Marco criminal street gang."
When asked a hypothetical based on facts mirroring the evidence elicited in the prosecution's case, Detective Creighton opined that the hypothetical perpetrator's conduct would benefit and promote the VSM gang. He clarified that if a hypothetical VSM member committed a carjacking without calling out "I'm from San Marcos," the crime would not necessarily have been gang-related. On the other hand, if the hypothetical VSM member announced being from San Marcos, that would suggest the crime was committed to advance the gang's interests by serving to increase the gang's notoriety and serve as a deterrent against reporting the crime. Detective Creighton stated he believed a gang member's gang-related tattoos and announcement of gang affiliation while committing a crime would be more intimidating to an "18-year-old Hispanic male who might have a greater knowledge of gang culture than [to a] 50-year-old white male."
Extending the hypothetical, Detective Creighton stated that by bragging about the crime to fellow gang members, the hypothetical perpetrator would "bolster[]" his reputation within the gang by showing he "is incredibly down for the gang and willing to commit violent acts on behalf of the gang." In this vein, Detective Creighton testified about a text message defendant sent the day after the offense to a female with "strong familial ties to" VSM in which defendant identified himself as Grims and said he was "the baddest nigga from the set."
B. Relevant Legal Principles
To prove a gang enhancement under section 186.22, subdivision (b)(1), the People must prove the defendant committed a felony "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) This enhancement "requires both [1] that the felony be gang related and [2] that the defendant act with a specific intent to promote, further, or assist the gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1139.) "Not every crime committed by gang members is related to a gang." (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
"It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation." (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) Expert opinion regarding gangs may be given in answers to hypothetical questions rooted in the established facts of the case at issue. (People v. Sanchez (2016) 63 Cal.4th 665, 685.)
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, supra, 51 Cal.4th at pp. 59-60.) We do not reweigh evidence or credibility determinations. (Ibid.)
C. Analysis
Substantial evidence supports the jury's true finding on the gang enhancement allegation. Detective Creighton testified as an expert that a hypothetical crime rooted in the facts of this case would be gang-related because it would increase the gang's notoriety and further the purpose of deterring victims' cooperation with law enforcement. (See Albillar, supra, 51 Cal.4th at p. 63 ["Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang.' "].) Similarly, by bragging about the crime, the hypothetical perpetrator would enhance his reputation within the gang by demonstrating he is "willing to commit violent acts on behalf of the gang." (Italics added.) These opinions are supported by substantial evidence that defendant announced his gang affiliation during the crime and then boasted about the crime to fellow gang members.
First, the record supports the predicate underlying Detective Creighton's opinion that defendant announced his VSM membership during the crime. J.A. testified that when defendant pulled out the gun and demanded the car, defendant said, "Do you know where you are? This is my hood," which J.A. construed as a threat based on his being in "the wrong part of town." As they drove off together, defendant said, "I'm from San Marcos," which J.A. construed as defendant "represent[ing]" San Marcos or claiming it as his "hood." Defendant vehemently argues this reference to "San Marcos" was too vague to constitute a reference to the Varrio San Marcos gang. We disagree. As Detective Creighton explained, the reference to "San Marcos" was a reference to the gang:
"Q. And this 'Where are you from?' Is there some particular significance to that as a question in a gang context?"
"A. As alluded to, it's essentially a challenge. It's an opportunity for a gang member to claim their gang in the face of another gang member or a group of gang members to either demonstrate their allegiance to that gang or to determine if they're not willing to say where they're from, if they are indeed a gang member. [¶] So it's essentially a challenge."
"Q. Okay. And how about when it's not used as a question but rather when it's used as a statement of, 'I am from'—and a location is said? [¶] Does that have a meaning when it comes from a gang member?"
"A. Yes it does."
"Q. And so, for example, 'I am from San Marcos.' Is that just saying geographically I have a San Marcos address?"
"A. No."
"Q. What's it mean?"
"A. It means he or she is claiming to be a San Marcos gang member."
"Q. Okay."
"A. Which would associate with Varrio San Marcos." (Italics added.)
Our review of the reporter's transcript indicates numerous other instances during trial when counsel, a witness, or the court referred to the Varrio San Marcos gang simply as "San Marcos." Substantial evidence shows defendant announced his gang affiliation during the commission of the kidnapping during a carjacking, which distinguishes this case from two of the authorities on which defendant relies. (See People v. Albarran (2007) 149 Cal.App.4th 214, 227 ["this shooting presented no signs of gang members' efforts in that regard—there was no evidence the shooters announced their presence or purpose—before, during or after the shooting."]; In re Daniel C. (2011) 195 Cal.App.4th 1350, 1363 ["nothing in the record indicates that appellant or his companions did anything while in the supermarket to identify themselves with any gang, other than wearing clothing with red on it. No gang signs or words were used, and there was no evidence that . . . any of the . . . persons who witnessed the crime knew that gang members or affiliates were involved"], italics added.)
Second, substantial evidence shows that defendant recounted his near-miss with law enforcement to fellow VSM members, and sent a text message to a VSM associate the next day declaring himself "the baddest nigga from the set." Although defendant asserts these communications do not necessarily constitute boasting, they strongly support the permissible inference that defendant conveyed to his fellow gang members or associates that he had committed an offense worthy of being pursued by a law enforcement helicopter (the "bird" or "ghetto bird"), that he successfully evaded capture, and this is what made him "the baddest" member of VSM.
Because we find these instances sufficient to support an inference of boasting, we need not address defendant's contention that the circumstances of his conversation and hand gesture at the time of his arrest are insufficient to support the inference. --------
Defendant's reliance on cases involving improper, conclusory expert opinions is misplaced. (See People v. Ochoa (2009) 179 Cal.App.4th 650; People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon).) In Ochoa, the appellate court reversed the gang enhancement attendant to a carjacking conviction because the gang expert's opinion that carjacking by a gang member would always be for the benefit of the gang " ' "did nothing more than [improperly] inform the jury how [the expert] believed the case should be decided," ' without any underlying factual basis to support it." (Ochoa, at p. 662.) As noted, Detective Creighton acknowledged that not every kidnapping during a carjacking committed by a gang member will be gang-related; rather, it is the announcement of gang affiliation during the commission of the offense that benefits the gang by promoting its notoriety and deterring cooperation with law enforcement. That element was missing in Ochoa; it is present here.
Similarly, in Ramon, the appellate court reversed the gang enhancement because the gang expert's opinion regarding the defendant's intent to benefit his gang was based on the fact that he and a fellow gang member were apprehended together in gang territory in possession of a stolen vehicle and firearm. (Ramon, supra, 175 Cal.App.4th at pp. 846-848.) Detective Creighton's opinion was not so limited.
In sum, substantial evidence supports the jury's true finding on the gang enhancement allegation.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.